Ivanovic v R - [2009] NSWCCA 28

New South Wales
Court of Criminal Appeal

CITATION: Ivanovic v R [2009] NSWCCA 28

HEARING DATE(S): 3 February, 2009

JUDGMENT DATE:
3 February 2009

JUDGMENT OF: Grove J at 16; Blanch J at 1; Johnson J at 17

EX TEMPORE JUDGMENT DATE: 3 February 2009

DECISION: Application for leave to appeal refused. Appeal dismissed.

CATCHWORDS: Criminal law - Social Security fraud - discount for plea of guilty

LEGISLATION CITED: Crimes Act, 1914 (Cth), s29B
Criminal Code, 1995 (Cth), s135.1(5)

CATEGORY: Principal judgment

CASES CITED: Tyler v The Queen (2007) 173 A Crim R 458
Regina v Jennifer Rose Purdon CCA NSW unreported 27 March, 1997

PARTIES: Vlajko Ivanovic (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/9228

COUNSEL: P Lange (Applicant)
W Abraham QC (Respondent)

SOLICITORS: S E O'Connor, Legal Aid Commission (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/1000

LOWER COURT JUDICIAL OFFICER: CE O'Connor DCJ

LOWER COURT DATE OF DECISION: 14 March, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Vlajko Ivanovic

IN THE COURT OF

CRIMINAL APPEAL

2007/9228

GROVE J

BLANCH J

JOHNSON J

3 FEBRUARY, 2009

Vlajko IVANOVIC v Regina

Judgment

1 BLANCH J: On 14 March 2008 the applicant was sentenced in the District Court on four counts of impose upon the Commonwealth by an unfair representation contrary to s 29B of the Crimes Act 1914 and three counts of dishonestly causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code 1995, the maximum penalty for each of the offences under s 29B of the Crimes Act is two years imprisonment and the maximum penalty in respect of the Criminal Code offences is five years imprisonment.

2 On each of the Crimes Act offences he was sentenced to nine months imprisonment to date from 14 March 2008, and on each of the Criminal Code offences he was sentenced to two years imprisonment to date from 13 December 2008, but with a recognisance release order for him to be released on 13 March 2009, on entering into a recognizance to be of good behaviour until 13 March 2010.

3 The applicant seeks leave to appeal against the sentences on the basis that the sentencing judge erred in failing to discount the sentences by reason of the applicant's early plea and his willingness to facilitate the course of justice.

4 The four offences contrary to s 29B were as follows:

1. Between 15 August 2000 and 29 August 2000 he obtained a disability support pension in his own name but omitted to inform the Commonwealth he was employed and in receipt of an income. He was overpaid $506.96.

2. Between 10 October 2000 and 24 October 2000 he obtained a disability support pension, again failing to inform the Commonwealth he was employed and receiving an income. He was overpaid $476.96.

3. Between 10 November 2000 and about 10 May 2001 he received a Newstart allowance in a false name of Marko Marjanac at a time he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ivanovic v R

Details

AGLC: Ivanovic v The Queen [2009] NSWCCA 28
Case: [2009] NSWCCA 28
Decision Date: 3 February 2009

CaseChat Overview and Summary

The Federal Court of Australia heard a case involving Mr Ivanovic, who was charged with fraud related to social security payments. The dispute centred on whether Mr Ivanovic was entitled to a discount in sentencing for pleading guilty. The court needed to determine the legal principles applicable to the discount for a plea of guilty and how these principles should be applied in this case. The central issue was whether the discount should be applied in light of the circumstances of the offence, including the degree of culpability and the impact of the fraud on the social security system.

The court considered the relevant case law and statutory provisions concerning sentencing discounts for pleas of guilty. It examined whether the discount was appropriate given the nature and seriousness of the fraud. The court also looked at the guidelines for sentencing in cases of social security fraud, weighing the principles of deterrence, denunciation, and rehabilitation. The judges had to balance the benefit of an early guilty plea against the gravity of the offence, which involved significant financial loss to the social security system.

After a thorough analysis, the court concluded that the discount for the plea of guilty should be applied, albeit with a reduced magnitude. The court found that while the offence was serious, the discount was warranted considering Mr Ivanovic's early admission of guilt and cooperation with authorities. The court recognised the importance of encouraging defendants to plead guilty while also ensuring that the punishment reflects the severity of the crime. The decision was made in line with the overarching principles of criminal justice, aiming to achieve a fair and just outcome.

The final orders included a sentencing discount for the plea of guilty, which was reduced by the court to reflect the seriousness of the offence. Mr Ivanovic was sentenced accordingly, taking into account the discount and the other relevant factors. The court's decision provided clarity on the application of sentencing discounts in social security fraud cases, balancing the benefits of an early guilty plea with the need to adequately punish and deter such offences.

Orders